What Can We Say About Mueller’s 49 Questions?

Benjamin Wittes
Tuesday, May 1, 2018, 1:00 AM

There are reasons to be cautious about the 49 questions that Robert Mueller wishes to pose to President Trump in an interview, as the New York Times reported Monday evening.

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There are reasons to be cautious about the 49 questions that Robert Mueller wishes to pose to President Trump in an interview, as the New York Times reported Monday evening.

Most important, the list of questions did not come from Mueller. By the Times’s account, the questions were “read by the special counsel investigators to the president’s lawyers, who compiled them into a list. That document was provided to The Times by a person outside Mr. Trump’s legal team.” In other words, the questions as the Times lists them are the Trump legal team’s account of the subjects Mueller’s investigators want to ask about.

Second, the Times’s sourcing is opaque as to how the list made its way to the paper, and it is thus unclear whether the reader should take these questions as Trump-team spin of some kind or as a neutral account, produced by the president’s lawyers for their client’s benefit, of what subjects the investigators actually want to cover. The story says the leak came from outside the Trump legal team. But the reader cannot tell whether these questions were leaked by someone, for reasons of his or her own, who for some unfathomable reason was given access to this attorney-client work product, or whether they were leaked by someone—say, a PR person—who was given access to the material by the legal team so that he or she should make it public. If the latter case is the reality, there is some public-relations objective here (though I cannot imagine what it is). Accordingly, the reader should consider not merely the possibility that Mueller’s specific concerns got blurred in a game of telephone between his office and the Times but also the possibility that his specific concerns were actively shaded in one direction or another in the course of a transmission of information designed to make some kind of point.

Third, the fact that Mueller wants to ask a question does not mean he is planning to bring charges related to that point. Sometimes, an investigator asks questions to close out a matter and to make sure that the subject’s answers are consistent with other information the investigation has obtained. So even if we assume that the questions reflect Mueller’s particular areas of interest, we cannot presume to know it means that a given subject matter is on the list—save that there is at least some residual investigative interest in it.

My point here is not to splash cold water on the story. It is simply that one should not read the list of subjects as the specific questions Mueller wants to ask Trump; they almost certainly are not that. And readers should harbor at least some skepticism as to how closely the questions reflect Mueller’s thinking, rather than the Trump team’s thinking about Mueller’s thinking—or even what the Trump team wants the public to think it is thinking about Mueller’s thinking. Moreover, be cautious about assuming that much can be inferred about Mueller’s intentions from the questions he might ask, even if it could be discerned from the list precisely what he is planning to pose to the president.

With those caveats, there are, I think, responsible inferences that can be drawn from this list, which presents a fascinating window—if a somewhat frosted one—onto the subjects of Mueller’s concern vis-a-vis President Trump. Here are some conclusions I think one can safely draw:

First, Mueller is focused in a serious way on suggestions of obstruction of justice and the legality of the president’s interactions with federal law enforcement. A great many of the questions concern Trump’s activities with regard to the underlying investigation of Michael Flynn, his interactions with then-FBI Director James Comey, his interactions with Attorney General Jeff Sessions, his contemplation of firing Mueller himself, and his public explanations of his actions on these matters.

What exactly Mueller intends here is hard to discern, since he is presumably bound by the Justice Department’s institutional position that a sitting president cannot be indicted. This body of questions is consistent, I suppose, with Ty Cobb’s repeated suggestions that Mueller is just wrapping up the investigation: Perhaps these are the outstanding threads about which he needs to get Trump on the record before doing so. But seeing the questions laid out together makes that prospect seem even more unlikely than it did before. Far more likely, in my judgment, is the Washington Post’s suggestion that Mueller is working on a report detailing the president’s conduct. What form such a report will take remains an important open question.

Second, one important piece of evidence that Mueller may not be gearing up to clear the president is that a great many of these questions focus on his state of mind. Obstruction of justice is a specific-intent offense; the same acts can be crimes or not depending purely on the state of mind of the person engaging in them. The words “That’s a nice house. It would be a shame if something happens to it.” are not a crime when spoken by an insurance salesman trying to sell a homeowner’s insurance policy. They are prototypical witness tampering when said by a mobster in an attempt to intimidate someone who is slated to testify against a mob boss.

Over the past few months, there has been a fierce debate between those who argue that the president cannot obstruct justice with acts he is constitutionally empowered to take and those who argue that he can. This list suggests that Mueller may have an opinion on this subject. If he believed, after all, that Josh Blackman was correct that “the Article II power over foreign affairs precludes Congress from punishing President Trump for his conduct in firing Comey” and that doing so would “impermissibly interfere with the President's authority under Article II” (to quote Morrison v. Olson), there would be no reason to inquire: “Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?” There would be no reason to ask “What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?” One only needs to ask questions like these—and many others on the list—if one believes that the underlying activity could, depending on the state of mind of the actor, violate the law. If Mueller believed that these acts were immune from scrutiny under the obstruction statutes, it would follow that he did not need to reach questions about the president’s mens rea at the time he took them.

Third, there is a clearly ongoing investigative interest in the core questions of “collusion.” Trump responded to the Times story by tweeting that there were no questions about the subject:

That’s not quite true. Here’s my Twitter response:

I will not speculate about whether these questions reflect wrap-up material for an investigation that ultimately will not implicate the president personally or whether they reflect active investigative interest that threatens him. They suggest, at a minimum, that the House intelligence committee majority may have jumped the gun when it gave the president and his campaign a clean bill of health on collusion last week. The committee may have run out of questions to ask on the subject, but Mueller has not.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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